Citation Nr: 0613761
Decision Date: 05/11/06 Archive Date: 05/25/06
DOCKET NO. 05-13 560 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas
THE ISSUE
Entitlement to an initial evaluation in excess of 50 percent
for service-connected post-traumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran had active duty service from April 1966 to April
1968.
This matter comes to the Board of Veterans' Appeals (Board)
from a July 1999 rating decision of the RO, which denied, in
pertinent part, service connection for PTSD. By December
2003 determination, however, the RO granted service
connection for PTSD, to which it assigned a 50 percent
evaluation. The veteran is contesting the initial rating.
The Board notes that the veteran expressed disagreement with
the effective date assigned. The RO resolved this matter in
the veteran's favor, and this issue is not before the Board.
In April 2005, the veteran withdrew all pending issues other
than entitlement to an increased rating for PTSD. Thus, any
other issues that may have been in appellate status are not
before the Board.
This matter was remanded to the RO on two occasions for
further evidentiary and procedural development.
In January 2006, the veteran testified at a hearing before
the undersigned, which was held at the RO.
FINDING OF FACT
The veteran's PTSD is manifested by no more than such
symptoms as dysphoria, rare nightmares, intrusive thoughts,
and some social isolation.
CONCLUSION OF LAW
The criteria for entitlement to a disability evaluation in
excess of 50 percent for the veteran's service-connected PTSD
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Preliminary Matters
Initially, it is noted that VA has an obligation to notify
claimants of VA benefits of what information or evidence is
needed in order to substantiate a claim, and it affirmed VA's
duty to assist claimants by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A
and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005).
Recently the United States Court of Appeals for Veterans
Claims (hereinafter the Court) issued a decision which held
that the notice requirements of 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) applied to all five elements of a service
connection claim, which include: 1) veteran status; 2)
existence of a disability; (3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. See
Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02-1506 (U.S.
Vet. App. March 3, 2006).
The Court held that upon receipt of an application for
service connection VA is required by law to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
See Dingess/Hartman, slip op. at 14. The Court held that
such notice must include notice that a disability rating and
an effective date for the award of benefits will be assigned
if service connection is awarded. Id.
VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim
(presumably any claim for compensation or pension) includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is expected to
provide. Further, VA must ask the claimant to provide any
evidence in her or his possession that pertains to the claim.
38 U.S.C.A. § 5103 (West 2002 & Supp. 2005); 38 C.F.R.
§ § 3.159(a)-(c) (2005).
Regarding the claim for an initial increased evaluation for
service-connected PTSD, the RO sent the veteran letters that
informed him of the evidence necessary to establish a higher
disability evaluation for his service connected PTSD, what
evidence they would obtain, and what evidence he should
submit. These letters also, essentially, requested that he
provide any medical evidence in his possession that pertained
to this claim.
The Board finds that the notice requirements set forth have
been met regarding this claim, because while it was not
provided prior to the appealed RO decision that established
service-connected for the disorder, it was provided prior to
the subsequent adjudication of the claim (see March 2005
supplemental statement of the case) the content of the notice
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b), and the veteran has submitted no
additional evidence or argument with respect to this claim.
In addition, the Board notes that the effective date assigned
for the establishment of service connection for PTSD is no
longer contested (see the veteran's December 2003 statement,
and subsequent October 2004 RO decision), any question as to
the appropriate effective date to be assigned is rendered
moot.
The Board also concludes VA's duty to assist has been
satisfied. Among other things, the veteran was afforded
several VA psychiatric examinations relevant to the issue on
appeal.
Standard of Review
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 4.3. When the positive and negative
evidence as to a claim are in approximate balance, thereby
creating a reasonable doubt as to the merits of a claim, the
claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed.
Cir. 2001). If the Board determines that the preponderance
of the evidence is against the claim, it has necessarily
found that the evidence is not in approximate balance, and
the benefit of the doubt rule is inapplicable. Id. at 1365.
Increased Ratings
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).
Where, as in the instant case, the appeal arises from the
original assignment of a disability evaluation following an
award of service connection, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of the disability rating to the
present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
The veteran's service-connected PTSD has been rated 50
percent disabling by the RO under the provisions of
Diagnostic Code 9411. 38 C.F.R. § 4.130.
The potentially pertinent provisions of 38 C.F.R. § 4.130
relating to rating psychiatric disabilities, including PTSD,
read as follows:
100% Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation or own name.
70% Occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships.
50% Occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short-and long-term memory (e.g. retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing effective
work and social relationships.
38 C.F.R. § 4.130, Diagnostic Code 9411.
Global Assessment of Functioning (GAF) scores are a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness." See Carpenter v. Brown, 8 Vet. App. 240, 242
(1995); see also Richard v. Brown, 9 Vet. App. 266, 267
(1996) (citing the American Psychiatric Association's
DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS,
Fourth Edition (DSM-IV), p. 32).
GAF scores ranging between 61 and 70 reflect some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, and has some
meaningful interpersonal relationships. Scores ranging from
51 to 60 reflect more moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). Scores ranging from 41 to 50 reflect serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in
social, occupational or school functioning (e.g., no friends,
unable to keep a job). Scores ranging from 31 to 40 reflect
some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable
to work; child frequently beats up other children, is defiant
at home, and is failing at school).
On May 1999 VA psychiatric examination, the veteran seemed
anxious and dysphoric. His speech and thought processes were
normal. There was no impairment of memory, and the veteran
was oriented in all spheres. Insight was somewhat limited,
but judgment was adequate. The examiner diagnosed a
depressive disorder not otherwise specified and assigned a
GAF score of 55.
A December 2000 private psychological evaluation report
indicated social isolation, depression, flashbacks, and
disturbing dreams.
On October 2003 VA psychiatric examination, the veteran
indicated that he was depressed. He that he had been married
to his wife for 38 years and that he seldom socialized with
people other than family members. Objectively, the veteran
appeared dysphoric. His thought processes were normal. His
speech was normal. His memory was intact. The diagnosis was
of chronic PTSD, and the examiner assigned a GAF score of 40.
On November 2003 VA psychiatric examination, the veteran
reported infrequent nightmares, rare intrusive thoughts,
emotional numbing, and sense of a foreshortened future,
irritability, and insomnia. The veteran was depressed and
had passing suicidal ideation with no attempts. On
examination, the veteran appeared depressed and anxious. He
exhibited no thought disorder, and he was oriented in all
spheres. The veteran denied any psychiatric
hospitalizations. He was taking no psychotropic medication.
The examiner diagnosed major depressive disorder in partial
remission, generalized anxiety disorder (GAD), and PTSD
versus PTSS (partial PTSD syndrome) versus GAD and assigned a
GAF score ranging between 60 and 70.
In November 2004, the veteran was again examined by a VA
examiner. The examiner noted that the veteran suffered from
depression and generalized anxiety disorder. To the extent
that he suffered from PTSD, it was relatively mild.
On March 2005 VA psychological examination, the veteran's
speech and thought processes were normal. There was no gross
impairment of memory. The veteran was oriented in all
spheres. The veteran reported social isolation and indicated
that he was unable to work due to his arthritis and
nervousness, but he did not display significant anxiety on
examination. The examiner indicated that work would not be
precluded as a result of the veteran's PTSD. The examiner
indicated that the relationship between the veteran's PTSD
and depression was unclear. The examiner diagnosed chronic
PTSD and assigned a GAF score of 50.
The veteran's January 2006 hearing testimony indicted
symptoms such as suicidal ideation. He indicated, as had
been documented in the examinations discussed above, that he
had been married for forty years. He related that he and his
wife argue and that he had slapped her in the past. The
veteran testified that he avoids crowds and has little
contact with his son and grandchildren.
A review of the foregoing evidence reveals a GAF score that
hovers between 40 and 70. It is unclear whether these GAF
scores are attributable solely to the veteran's PTSD, which
has been characterized as mild. In any event, the Board will
examine the evidence based upon the most serious symptoms.
The GAF score of 40 suggests some impairment in reality
testing or communication or major impairment in several
areas, such as work or school, family relations, judgment,
thinking, or mood. Nonetheless, the Board is of the opinion
that an evaluation in excess of 50 percent is not warranted
for the veteran's PTSD. Despite his GAF score, the veteran's
thought processes have always been described as normal. His
speech too has been consistently characterized as normal.
His memory is intact, and he has been fully oriented at all
times. Hallucinations and delusions have not been noted.
Furthermore, the veteran does not require psychotropic
medication and has never been psychiatrically hospitalized.
A 70 percent evaluation would entail such symptoms as
obsessional rituals interfering with routine activities,
abnormal speech, near continuous panic, impaired thinking, an
inability to function independently, impaired impulse
control, and neglect of personal appearance and hygiene.
None of these manifestations, all associated with a 70
percent evaluation, have been shown.
The veteran has complained of passing suicidal ideation and
some social isolation. However, regarding the former, he has
made no attempts, and no examiner has inferred a serious risk
of suicide. As well, although the veteran is socially
isolated, he has been able to sustain a four-decade marriage
and to maintain some contact with family. The Board
emphasizes that although he does not work, his PTSD is not of
the severity that would prevent him from working. Although
the veteran stopped working a few years ago, it has been
consistently noted in the record that he tends to his farm.
On balance, even when considering the veteran's symptoms at
their worst, a 70 percent evaluation is not warranted. As
outlined above, the veteran is simply lacking most of the
manifestations associated with a 70 percent evaluation. The
foregoing observation is true for the entire appellate
period. Thus, an increased rating for PTSD is denied for the
entire appeals period. 38 C.F.R. § 4.130, Diagnostic Code
9411; Fenderson, supra.
The potential application of various provisions of Title 38
of the Code of Federal Regulations has also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the
service connected disorder has resulted in marked
interference with employment or necessitated frequent periods
of hospitalization. Under these circumstances, the Board
finds that the veteran has not demonstrated marked
interference with employment so as to render impractical the
application of the regular rating schedule standards. In the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
Finally, in making this determination, the Board has
considered the provisions of 38 U.S.C.A. § 5107(b), but there
is not such a state of approximate balance of the positive
evidence with the negative evidence to otherwise warrant a
favorable decision.
ORDER
The appeal is denied.
_________________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs